People v. Viscaina CA1/1

Filed 12/31/20 P. v. Viscaina CA1/1
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.


                                      FIRST APPELLATE DISTRICT

                                                   DIVISION ONE

             Plaintiff and Respondent,
 FELICIA ANN VISCAINA,                                                  (Contra Costa County
                                                                        Super. Ct. No. 5-1314970)
             Defendant and Appellant.

                                       MEMORANDUM OPINION1
         After defendant Felicia Ann Viscaina was charged with murder (Pen.
Code, § 1872), accompanied by allegations of a strike (§§ 667, subds. (b)-(i),
1170.12) and a prior prison term (§ 667.5, subd. (b)), she pled no contest to
voluntary manslaughter (§ 192, subd. (a)) and admitted both enhancements.
She was sentenced to a total prison term of 25 years. Pursuant to section
1170.95, she subsequently sought resentencing. Counsel was appointed and
the prosecution filed opposition. The trial court denied the petition, ruling
defendant was ineligible given that her conviction was for manslaughter.

        This appeal is appropriately resolved by way of memorandum opinion

pursuant to California Standards of Judicial Administration, section 8.1,
subdivisions (1) and (3).
       All further statutory references are to the Penal Code unless

otherwise indicated.

      Section 1170.95, subdivision (a)(1)-(3) provides:
      “A person convicted of felony murder or murder under a natural and
      probable consequences theory may file a petition with the court that
      sentenced the petitioner to have the petitioner’s murder conviction
      vacated and to be resentenced on any remaining counts when all of the
      following conditions apply:
      “(1) A complaint, information, or indictment was filed against the
      petitioner that allowed the prosecution to proceed under a theory of
      felony murder or murder under the natural and probable consequences
      “(2) The petitioner was convicted of first degree or second degree
      murder following a trial or accepted a plea offer in lieu of a trial at
      which the petitioner could be convicted for first degree or second degree
      “(3) The petitioner could not be convicted of first or second degree
      murder because of changes to Section 188 or 189 made effective
      January 1, 2019.”

      Defendant concedes the language of section 1170.95 refers only to
“murder” convictions. However, she maintains the statutory language does
not foreclose applicability to manslaughter convictions and that “[i]f the
Legislature intended to invalidate the natural and probable consequences
doctrine as a substitute for intent to kill for one type of intentional homicide
(murder), it rationally follows that it must have also intended to invalidate
that same substitute for the other type of intentional homicide, i.e. voluntary
manslaughter.” She additionally claims, it would be both “absurd” and
“fundamentally unfair” to conclude “the Legislature intended [Senate Bill
No.] 1437 [(2017-2018 Reg. Sess.)] to reverse murder convictions but not
lesser included convictions based on the exact same set of facts.”
      The Courts of Appeal have uniformly rejected such arguments. As
Division Two of this court recently explained in People v. Paige (2020) 

51 Cal. App. 5th 194

(Paige), read “as a whole, considering both its structure and
its language,” the statute “cannot reasonably be understood to encompass

persons who accept a plea offer in lieu of trial for a crime other than murder.
The first paragraph of section 1170.95, subdivision (a) sets forth the basic
‘who’ and ‘what’ of the statute—who may seek relief and what they may seek.
The ‘who’ is ‘[a] person convicted of felony murder or murder under a natural
and probable consequences theory’ and the ‘what’ is the opportunity to ‘file a
petition with the court . . . to have the petitioner’s murder conviction vacated.’
[Citation.] . . . Given the structure of the statute and the language in the first
paragraph of section 1170.95, subdivision (a), the reference to a person who
‘accepted a plea offer’ in subdivision (a)(2) must necessarily mean a person
who accepted a plea to, and was convicted of, first or second degree murder in
lieu of a trial at which he could have been convicted of either of those charges.
Also relevant are section 1170.95, subdivision (d)(1), which refers to the court
determining ‘whether to vacate the murder conviction,’ and section 1170.95,
subdivision (d)(2), which allows the parties to stipulate ‘that the petitioner is
eligible to have his or her murder conviction vacated.’ These provisions also
expressly limit their application to murder convictions, and neither they nor
any other part of the statute address granting relief from a conviction of any
crime other than murder.” (Paige, at p. 202, fn. omitted, quoting People v.
Turner (2020) 

45 Cal. App. 5th 428

, 435-436 (Turner).)
      Division Two therefore agreed, as do we, with Turner and other cases
that have concluded “ ‘the petitioning prerequisites and available relief
indicate that the Legislature intended to limit relief to those convicted of
murder under a theory of felony murder or natural and probable
consequences murder’ ” and “ ‘section 1170.95 is unambiguous and does not
provide relief to persons convicted of manslaughter.’ ” 

(Paige supra

51 Cal.App.5th at p. 202; see People v. Sanchez (2020) 

48 Cal. App. 5th 914

917–920 (Sanchez); 

Turner, supra

, 45 Cal.App.5th at pp. 435–436; People v.

Flores (2020) 

44 Cal. App. 5th 985

, 992–997; People v. Cervantes (2020)

44 Cal. App. 5th 884

, 887 [“The plain language of [section 1170.95] is explicit;
its scope is limited to murder convictions.”].)
      Defendant’s claim that the legislative history advances her cause, at
bottom, is “based on a snippet of language from the uncodified section of
Senate Bill No. 1437 stating the purpose of the bill is to more equitably
sentence offenders ‘in accordance with their involvement in homicides’
(Stats. 2018, ch. 1015, § 1, subd. (b), italics added).” 

(Paige, supra

51 Cal.App.5th at p. 203.) But this disregards other provisions. “[I]n the
same uncodified section of the bill that sets forth its general purposes of fairly
addressing culpability and reducing prison overcrowding caused by
inequitable sentences, the Legislature also made the following findings. ‘It is
necessary to amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that murder liability
is not imposed on a person who is not the actual killer, did not act with the
intent to kill, or was not a major participant in the underlying felony who
acted with reckless indifference to human life.’ (Id., subd. (f), italics added.)
‘Except as stated in subdivision (e) of Section 189 of the Penal Code, a
conviction for murder requires that a person act with malice aforethought. A
person’s culpability for murder must be premised upon that person’s own
actions and subjective mens rea.’ (Id., subd. (g), italics added.)” (Paige, at
p. 203; see 

Turner, supra

, 45 Cal.App.5th at pp. 436–438.)
      Finally, in claiming it is “absurd” and “fundamentally unfair” to deny
resentencing to defendants who pled guilty to manslaughter, defendant
overlooks the significant point that defendants who proceeded to trial and
were convicted of murder, were sentenced accordingly, whereas those
defendants who pled guilty to lesser charges were sentenced commensurately

to lesser crimes. “As the court noted in Turner, ‘[t]he punishment for
manslaughter is already less than that imposed for first or second degree
murder, and the determinate sentencing ranges of 3, 6, or 11 years for
voluntary manslaughter . . . permit a sentencing judge to make punishment
commensurate with a defendant’s culpability based on aggravating and
mitigating factors.’ (Turner, [supra, 45 Cal.App.5th] at p. 439; see § 193,
subd. (a).) Construing section 1170.95 to exclude those convicted of voluntary
manslaughter by plea agreement therefore does not ‘produce absurdity by
undermining the Legislature’s goal to calibrate punishment to culpability.’
(Turner, at p. 439.)” 

(Sanchez, supra

, 48 Cal.App.5th at pp. 919–920, fn.
      The order denying defendant’s petition for re-sentencing is

                                 Banke, J.

We concur:

Humes, P.J.

Margulies, J.

A159426, People v. Visaina


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